ELECTRONIC
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2,
2005
BEFORE THE POLLUTION CONTROL BOARD
OF THE
STAFF
OF
ILLINOIS
THE CITY OF SPRINGFIELD,
a
municipal
corporation,
Petitioner,
)
PCB 06-75
v.
)
(Permit
Appeal
—
Air)
)
ILLINOIS ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
)
NOTICE OF FILING
To:
Dorothy M. Gunn
Rohb H.
Layman
Clerk of the
Board
Sally Carter
Illinois Pollution Control
Board
Illinois Environmental Protection
Agency
100
West Randolph
1021
North Grand Avenue
East
Suite 11-500
P.O. Box
19274
Chicago, IL 60601
Springfield, IL 62794-9274
Carol Webb
Mr.
William Murray
Hearing Officer
City
Water Light & Power
Illinois Pollution Control
Board
800
East Monroe
Street
1021
North Grand Avenue
East
4th
Floor
P.O. Box
19274
Springfield,
IL
62701
Springfield, IL
62794-9274
Please take notice that
on
December 2, 2005, we filed electronically with the Office ofthe
Clerk
of the
Illinois Pollution Control Board the
REPLY TO THE
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY’S MOTION IN PARTIAL OPPOSITION TO,
AND
PARTIAL
SUPPORT OF, PETITIONER’S REQUEST FOR STAY,
which is served
upon you.
Respectfully submitted,
THE
CITY OF SPRINGFIELD,
a municipal corporation
B
One of its attorneys
Dated:
December 2, 2005
Cynthia
A. Faur
Mary A.
Gade
Elizabeth A.
Leifel
Sonnenschein Nath & Rosenthal
LLP
8000
Sears Tower
Chicago, Illinois
60606
(312) 876-8000
THIS FILING IS BEING SUBMITTED ON RECYCLED PAPER
ELECTRONIC
FILING,
RECEIVED, CLERK’S OFFICE,
DECEMBER
2,
2005
BEFORE
THE POLLUTION
CONTROL BOARD
OF THE STATE
OF
ILLINOIS
THE CITY OF
SPRINGFIELD,
a municipal corporation,
)
Petitioner,
)
)
PCB 06-75
V.
)
(Permit Appeal
—
Air)
)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION AGENCY,
)
Respondent.
REPLY TO THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY’S MOTION
IN PARTIAL
OPPOSITION TO,
AND PARTIAL SUPPORT OF, PETITIONER’S
REQUEST FOR STAY
Petitioner, the City of Springfield,
as
owner and operator of an electric generation
and
transmission utility
commonly known as
City
Water,
Light
& Power (“CWLP”), by
and through
its attorneys, Cynthia A.
Faur, Mary A.
Gade, Elizabeth A. Leifel, and Sonnensehein Nath &
Rosenthal
LLP, hereby submits its reply to
the Illinois Environmental Protection Agency’s
(the
“Agency’s” or the
“Respondent’s”) Motion In Partial Opposition To, and Partial
Support Of,
Petitioner’s Request for Stay (“Respondent’s Motion”).
INTRODUCTION
On September 27, 2005, the Agency issued a Clean Air Act Permit Program (“CAAPP”)
permit for the City of Springfield’s Lakeside and Dallman Generating Stations.
Contemporaneous
with its Petition For Hearing To
Review Clean Air Act Permit Program
Permit Issuance (“Petition”),
filed on November 3, 2005, CWLP filed a Motion to Stay
Effectiveness of CAAPP Permit (“Motion”)
In
its
Motion, CWLP
noted that the Illinois
Pollution Control Board (the “Board”) could find that CWLP’s CAAPP permit never became
effective pursuant to
§
10-65(b) of the
Illinois Administrative Procedures Act (the
“APA”) and
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2005
the holding
in
Borg-Warner Corp. v
Mauzy,
100 ill.
App.
3d 862,
427 N.E.2d
415
(3d
fist.
1981).
CWLP further demonstrated that even
if the
Permit became effective, a stay of
effectiveness
of the CAAPP permit is warranted in this instance
because each
one of the
factors
considered
by the
Board when reviewing a motion for stay is satisfied.
As analyzed further below, both bases set forth
in CWLP’s
Motion
support a stay of the
entire
Permit pending
a decision from
the Board on
CWLP’s Petition.
The Agency has not
presented convincing reasons
for the
Board to deviate from its
past practice of granting
a stay of
an entire permit pending a determination
on appeal.
In some
instances, the Agency has
gone
so
far
as
to misconstrue the procedural framework under which the
CAAPP operates.
When viewed
properly,
the APA, the Board’s regulations and prior decisions, and Illinois case law, all support
a stay of the Permit
in its
entirety.
ARGUMENT
I.
Section 10-65(h)
Applies To
CAAPP Permits
Section
10-65(b) of the APA provides
as
follows:
When a licensee has made timely and sufficient application for the
renewal of a license or a new license with reference to any activity
of a continuing nature,
the existing license shall continue in hill
force and effect until the final agency decision on
the
application
has been made unless a later date
is fixed by order of a reviewing
court.
5 ILCS
100/10-65(b).
It is undisputed that the Permit
is a “license” within the meaning of the
APA.
(See Respondent’s Motion at pp.
3-4).
Under
Borg-Warner Corp.
v.
Mauzy,
100
Ill. App.
3d
862, 427 N.E.2d 415
(3d Dist.
1981), the Board, not the
Agency, makes the “final agency
decision” on any issued permit when it
rules on
an
appeal,
Here,
as in
Borg-Warner,
there will
be no
“final
agency action” with respect to the Permit until
the Board has fully considered and
ruled on CWLP’s Petition.
Until such time, Section
10-65(b) dictates that the
new Permit will
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not
take effect.
Instead,
CWLP’s existing permits
continue
in
full
force and effect and represent
the
complete set of requirements
with which CWLP
must comply.
Application of
Borg-Warner
and Section
10-65(b) of the APA is not a stay of the Permit;
instead, under Section
10-65(b), the Permit never became effective
because
it was
not “final
agency action,”
Borg-Warner,
100
Ill.
App.
3d at 870-71, 427 N.E2d at 421
(“A final decision,
in the
sense of a final
and binding decision coming
out of
the administrative process before the
administrative agencies
with decision making power, will
not
be forthcoming in the
instant case
until the PCB rules on
the
permit application..”).
Neither
Borg-Warner
nor Section
10-65(b)
of the APA draw a distinction,
as the Agency does, between contested terms and uncontested
terms.
instead, both authorities dictate an all-or-nothing approach.
The entire new license is
fneffectivc until the Board has rendered a final decision.
The Agency’s
attempts to point to
contrary authority are unpersuasive.
The Agency points to
415
ILCS 5/3l.l(e), a provision with
no applicability to the case at hand, which specifically exempts “administrative citations” from
section 10~65(b).t
Additionally, the Agency attempts to draw a comparison between Section
31
.1(e) and the
“severability” provision in 415
ILCS 5~~95(7)O)•
Unlike Section
31.1(e), which explicitly
exempts administrative citations from Section
10-65(a), Section
39.5
contains no
such explicit
exemption.
Nowhere in its text does Section
39.5 exempt CAAPP permits from the
requirements
of the APA.
To the contrary, scattered throughout Section
39.5 is the mandate that the Agency
adhere to the strictures of the APA.
See, e.g.,
4i5 ILCS
5/39.5(4)(h), stating that the Agency has
the
authority to
promulgate regulations “in accordance with the ~APA.”
It is
an elementary rule
A CAAPP permit is not an “administrative citation.”
See
35111. Admin. Code
§
101 .202,
defining an
“administrative citation” as
“a citation issued pursuant to
Section 31 .1
of the Act by
the
Agency
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of statutory
construction
that
by using
certain language in one provision and
entirely different
language in another,
the General Assembly
intended the two provisions to have different results.
See
In
re KC.,
186
Ill. 2d
542, 550-51, 714 N.E.2d 491,
495
(1999);
see also Hamilton
v.
Conley,
356111.
App.
3d
1048, 827 N.E.2d 949, (2d Dist. 2005) (holding
that if the legislature
wished
for two provisions of the Business Corporation Act to have the same impact, it
would
have
written the two sections with the same language).
Thus, the severability provision in
Section ~95(7)O)
does not have the same impact as the explicit exemption from the APA under
Section
31.1(e).
Moreover,
as the Agency concedes, the permit content requirements of the
Clean Air Act and the
Illinois CAA1~P
are not directly binding
on the Board.
(See Respondent’s
Motion at p.
16).
Even ifSection
~~~(~)O)
could be read to
make Section
10-65(b) of the APA
inapplicable
to CAAPP
permitting, which
it cannot,
Section
1-5 of the
APA, 5
ILCS
100/1-5,
provides that the
provisions of the APA take precedent over inconsistent provisions
contained
in
other statutes.
Although
Section
1-5 of the APA
contains a “grandfathering” provision for rules
in effect prior to July
1,
1977, that provision has no effect here.
The statute implementing the
CAAPP,
Section
39.5 of the Illinois Environmental
Protection Act, first became effective on
September
26,
1992 (PA.
87-12 13).
The
Board’s procedural rules for administrative appeals of
CAAPP permits, found at 35
III. Admin. Code
§
105.300 et
seq., took effect
on March31, 2000,
well after the enactment of the statute.
The Agency asserts that the
Board’s “procedural rules”
were in place long before July
1,
1977.
Section
1-5 of the APA does not refer to some
amorphous “procedural rules;” on the contrary, the grandfathering provision specifically refers to
existing procedures “specifically for
...
licensing.”
Clearly, before Section
39.5 was enacted,
the Board would have no reason or authority to have procedural
rules specific to the
issuance of
permits under the CAAPP.
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The Agency
also attempts
to distinguish
Borg-Warner
on the basis
that the NPDES
regulations
at issue
there, although
they were promulgated in
1974, did not become effective
until
after the July
1,
1977 date under Section
1-5
of the APA,
This argument misses the
mark.
The
Borg-Warner
court’s analysis of the NPDES permitting regulations is immaterial
to the
extent that it addresses the effective date of the regulations.
However, the analysis is useful in
one regard:
the
Borg-Warner
court was
not considering general
Board “procedural
rules” in
determining the
applicability of the grandfathering provision.
Rather, the court evaluated the
grandfathering provision in the context of the Board’s rules relating specifically to the NPDES
licensing procedures.
Borg-Warner,
100 III. App.
3d at 865, 427 N.E.2d at 418.
Thus, the Borg-
Warner analysis supports the notion that
it is the Board’s rules
for CAAPP permitting, not
its
general
“procedural rules,”
that are considered in determining
the applicability of the
grandfathering provision under Section
1-5 of the APA.
Thus, the Agency has shown no reason that the holding of Borg-Warner should not apply
here,
as
it
does in the NPDES permitting context, and the
Board should
find that CWLP’s Permit
does not take effect until its final decision on
CWLP’s Petition.
H.
CWLP Is Entitled To A Stay
Of
Its
CAAPP Permit
Even if the Board finds that Borg-Warner and the APA
do not apply,
CWLP has shown
that a stay of the Permit is appropriate within the Board’s discretionary authority.
Illinois law
provides that the Board has discretion to stay apermit if (1) an ascertainable right requires
protection,
(2) irreparable injury will occur without the stay, (3)
no adequate remedy at law
exists, and (4) there is a probability of success on the merits.
See Nielsen
&
Bainbridge, L.L. C.
v.
Illinois Environmental Protection Agency,
Docket No. 03-98 (III. Pollution Control
Bd. Feb.
6,
2003);
see also Saint-Gobain
Containers,
Inc.
v.
Illinois Environmental Protection Agency,
Docket No. 04-47
(111. Pollution Control Bd. Nov.
6,
2003);
Noveon,
Inc.
v.
Illinois
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Environmental Protection Agency,
Docket No.
04-102 (Ill. Pollution
Control Bd.
Jan.
22.
2004);
and
Bridgestone/Firestone OffRoad Tire Company
v,
Illinois Environmental Protection Agency,
Docket No.
02-31(111.
Pollution Control
Bd. Nov.
1, 2001) (noting that it
is
not necessary for the
Board
to consider all four factors).
The Agency has conceded that CWLP has demonstrated that
each
of these factors is present.
Its primary argument appears to be
based
on various “other
related
factors.”
This argument appears to be centered on three key factors, which dovetail
with
the traditional
factors considered by
the Board.
CWLP addresses each of those
arguments in
turn.
A.
A stay ofonly the
contested portions ofthe Permit wouldresult
in
substantial confusion.
Contrary to the Agency’s contention that the “vast majority” of permit conditions are
unaffected by
its appeal, CWLP has challenged
a large number of permit conditions (over
140
subparts of 48 permit conditions)
that have
been imposed by
the
Agency without adequate basis.
These conditions pervade the entire Permit,
running the gamut from
monitoring and testing
requirements to recordkeeping and reporting requirements.
To sever these provisions
would be
to require CWLP to develop different monitoring and testing protocols for various types of
equipment and to implement different recordkeeping systems depending on the applicability of
the challenged condition.
For example, Condition 7.2.10-1(a)
concerns reporting of deviations
for CWLP’s Unit 33.
In
its Petition, CWLP objected to numerous
subparts of this Condition for
different reasons.
First, CWLP objected to Condition 7.2.10-I(a)(i) and (ii) to the extent that
they require compliance with Condition 7.2.10-3(a),
which is another contested condition.
Condition
7.2.1 0-2(a)(iii) is also objectionable to the extent it
requires compliance with
Condition 7.2.l0-2(d)(iii).
Condition
7.2.10-2(a)(iii) also requires compliance with Conditions
7.2.10-2 (b), (c), and
(e), to which CWLP did
not object.
Condition
7.2.1 0-2(a)(iv) requires
prompt notification of all deviations not
otherwise specifically addressed
in Conditions
7.2.10-
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2(a)(i), (ii)
and (iii). including all other applicable requirements,
sonic of which have been
contested and
some of which have been
contested.
This is just one of many examples
where
CWLP
has appealed numerous portions
of conditions
because of their relation to other contested
conditions.
As demonstrated by this one example, if only those provisions contested
by CWLP
were
stayed,
CWLP would be required to parse
all the cross
references in its
permit and
its
Petition
and essentially create an entirely different reporting system for only the non-contested
requirements.
Such a result would unduly burden CWLP and could lead to confusion concerning
compliance with non-contested portions of the Permit as the Board, the
Agency and other
interested parties would need to undertake a similar parsing of the
154 page
Permit and the 70
page Pctition to verify compliance with Permit terms.
To require such parsing would
place an
undue burden on
the
enforcementprocess, resulting in a chilling effect that the Agency clearly
wishes to avoid.2
In the event that portions of the Permit are stayed pending this appeal while other
portions remain in effect, CWLP would be required to comply with applicable laws
and
regulations and would evidence such compliance by meeting the terms of its former operating
permits.3
The Agency argues that the former operating permits wouldhave no
effect. This
2
The Agency has expressed concern that granting a stay of the entire Permit
would take away
enforcement avenues under the Clean Air Act.
(See
Motion at pp.
17-18, discussing the dangers
of allowing “protective appeals” to operate as an enforcement bar).
CWLP
disagrees with the
Agency’s assertion regarding
so-called “protective appeals” and believes that a stay of the entire
Permit would actually make enforcement under the Clean Air
Act more expeditious than would a
stay of the contested provisions only.
(See Section
II.B,
infra).
Contrary to the Agency’s assertion in its Response
(Respondents Motion at p.
13), CWLP does
not find it confusing to comply with its former operating permits,
all of which specifically
identified the emissions source subject to the permit andthe
applicable requirements
for that
source.
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argument
is
unreasonable
and contrary to the
plain language of Section 39.5(4)(g).
That
provision states that once a newly issued CAAPP permit becomes
effective,
it supersedes the
State operating permit.
415
ILCS 5/39.5(4)(g).
As discussed above and in CWLP’s Petition,
CWLP contests whether the Permit has become effective at all.
(See Petition at ~28-32,
challenging the Effective Date of the Permit).4
Moreover,
because the former operating permits
contain applicable requirements, CWLP will,
by default, comply with their provisions to the
extent that they embody applicable requirements pending
a decision by the Board on its Petition.
Because CWLP has challenged so many of the
Permit’s conditions, particularly those that
require the implementation
of systemic and/or operational changes,5
it is reasonable to require
CWLP to comply with its former operating permits until
the Board has reached a decision.
B.
No environmental harm
will resultfrom a stay ofthe entire Fermi!.
‘Ihe Agency spends considerable time discussing the philosophical underpinnings of the
CAAPP, concluding that the General Assembly
did
not intend for existingpermits to remain in
effect even during
an appeal
by drawing a distinction between contested
conditions and
uncontested conditions.
(See Respondents Motion at pp.
15-18).
While the Agency focuses on
nuances and inferences within the statutory framework of the CAAPP, CWLP posits that the
most fundamental principle behind the CAAPP and its
implementing regulations is the
“The Agency has apparently attempted to address the
merits of CWLP’s Petition in its
Motion,
stating that Sections 39.5(4)(b) and 39.5(4)(g) “indicate that permit issuance and permit
effectiveness for a CAAPP permit are synonymous
.
.
.“
(See Respondent’s Motion at pp.
11-
13).
CWLP takes issue with this bald assertion, but declines to address this argument here.
CWLP respectfully refers the Board to its Petition, which outlines objections to atotal of
146
subparts of 48 conditions within the Permit.
These contested conditions
include monitoring,
reeordkeeping, reporting, and inspection requirements.
Requiring CWLP to parse through the
Permit to
determine which equipment
is subject to inspections at what time, what new
information should be included in various reports, what
records should be kept and for howlong,
only to face the possibility that those requirements may change following the Board’s decision,
would be unduly burdensome.
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prevention of environmental harm.
In this
case,
no
environmental harm
would result from
a
stay
of the entire Permit, as
opposed to
a stay of the contested provisions only.
First, as
discussed in Section hA,
supra,
the former operating permits, by
default, remain
in effect
until the new Permit becomes effective.
415
ILCS 39.5(4)(g).
The former operating
permits contain all
requirements for recordkeeping, reporting, monitoring, and testing.
as well
as
emissions
limits, under Illinois law.
Thus,
a stay of the entire Permit would result
in no
environmental
harm.
Second, as noted
in Section hA., supra, compliance with the former operating
permits
would still allow the State
and/or private citizens to enforce the applicable requirements under
Illinois law.
Moreover, avenues
of enforcement not tied to the permit are still available.
For
example,
the United States Environmental Protection Agency (“U.S.
EPA”) could bring
an
action against CWLP in the event a provision under the New Source
Performance Standards was
violated.
The Illinois Attorney General would
also be able to bring an action against CWLP
for
any violation of the Clean Air Act,
with or without the Agency’s participation.
Finally, private
citizens could bring an action under Section 304 of the Clean
Air Act to
enforce state
implementation plans.
See
42 U.S.C.
§
1857h-2, authorizing individuals to act as private
attorneys general to enforce State Implementation Plans upon notice to U.S. EPA and failure of
U.S. EPA to act.
For these reasons, the Agency’s concern that a stay ofthe entire Permit “would
effectively shield an entire segment of Illinois’ utilities sector from potential enforcement” is
unfounded.
(See Respondent’s Motion at p.
17).
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C.
The I3oard should not dei’icuetrom
its past practice ofgranting a stay
where requested.
The Board has a practice of granting stays of CAAPP permits where
requested
to do
so.6
The
Agency concedes
that this has been the Board’s practice, noting that the only instances in
which the Board has declined to stay
an appealed permit is where
the petitioner has
not requested
a stay.
(See Respondent’s Motion at p.
l4).~CWLP notes that while the Board is not
necessarily
bound by
its decisions in prior eases in which a stay of an entire permit was granted, it
is
constrained by the confines of rationality if it elects to deviate from
its past practices.
See, e.g.,
Alton Packaging
Corp.
v.
Pollution
Control Board,
146 Ill.
App.
3d
1090,
1093-94, 497 N.E.2d
864.
867-68 (5~Dist.
1986) (holding that the Board acted arbitrarily in deviating from its
previous custom and practice in interpreting and applying its rules);
see
also Greer v.
Illinois
Housing Development Authority.
122 Ill. 2d
462,
505-06,
524 N.E.2d 561,
581
(“While an
agency
is not required to adhere
to acertain policy or practice forever, sudden
and unexplained
changes have often been
considered arbitrary”).
Here, the Agency asserts that recently,
it had a
conversation with U.S. EPA concerning the severability provisions required to be included in
CAAPP permits.
The Agency
does not explain in its Response
or in the attached affidavit the
content of the conversation or the ramifications, if any, of that conversation.
Accordingly, the
Agency has provided
no rational basis for the
Board to deviate from its
prior practice of granting
a stay of the entire permit where requested.
6
See, e.g., Lone Star md.
v.
Illinois Environmental Protection Agency,
Docket No. 03-94, slip
op.
at p.2
(Ill. Pollution Control
Bd. Jan. 9,
2003);
Saint-Gobain Containers,
Inc.
v.
Illinois
Environmental Protection Agency,
Docket No. 04-47, slip op.
at pp.
1-2 (Ill. Pollution Control
Bd.
Nov. 6, 2003);
Midwest Generation, LLC v.
Illinois Environmental Protection Agency,
Docket No.
04-108, slip op.
at p.
1(111. Pollution Control Bd.
Jan. 22, 2004).
The Agency also notes that
it has not challenged a party’s request for a stay in the past, even
where the requested relief is a stay of the entire permit.
(See Motion at p.
14).
The
Agency,
however, has not presented a reason for its
inaction in the past, nor has it presented an adequate
reason for its sudden pressing need
to challenge a stay in the present ease.
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CONCLUSION
For all the reasons set forth
above, the Board should grant CWLP’s Motion to Stay
Effectiveness
of CAAPP Permit and grant
any other such relief as
it
finds necessary and
appropriate.
If the Board determines that a stay of the entire
Permit is unwarranted, CWLP
requests, in the alternative, that the contested conditions should be
stayed in their entirety in
order to prevent confusion.
Respectfully
submitted.
THE CITY OF SPRINGFIELD,
a municipal corporation
Dated:
December
2, 2005
Cynthia A. Faur
Mary A.
Gade
Elizabeth A. Leifel
SONNENSCI-JEIN NATH &
ROSENTHAL LLP
8000
Sears Tower
233
South
Wacker Drive
Chicago,
Illinois 60606
(312)
876-8000
11974131
By
Of Its
Attorneys
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CERIIFICAlEOF
SERVICE
The undersigned,
an attorney,
certify that
I have served upon the individuals named on
the attached Notice of Filing true and correct copies of the
REPLY TO THE ILLINOIS
ENVIRONMENTAL PROTECTION AGENCY’S MOTION IN PARTIAL OPPOSITION
TO,
AND
PARTIAL SUPPORT OF,
PETITIONER’S REQUEST FOR STAY by electronic
file
and First Class Mail, postage prepaid on December
2, 2005.
